HKSAR v. LEE SHING ON, DAVID

HCMA 938/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 938 OF 2008

(ON APPEAL FROM ESCC 2231/2008)

----------------------

----------------------

--------------------------

J U D G M E N T

------------------------

1.  On 15 July 2008 the Appellant was convicted of two counts of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance, Chapter 210 Laws of Hong Kong.  He was sentenced to a term of 6 months imprisonment on each charge to run concurrently with each other.  He now appeals against these convictions.

2.  On 17 March 2009, the matter came before me and having heard argument for the Appellant and Respondent respectively, I reserved my ruling to be handed down at a later date.  I do so now, and apologise to all parties for the lateness of this ruling which is due to circumstances entirely beyond my control.

3.  The background to this case can in fact be found in the admitted facts which were placed before the learned Magistrate and which indicate that on 8 and 9 June 2007 respectively, the date on which the two offences were alleged to have taken place, PW1, Miss Au Suk-han had used three of her credit cards to purchase two digital cameras, two watches and fourteen mobile phones.  The total amount spent on the cards on 8 June amounting to $154,556 and on 9 June, $20,772.  The goods were eventually handed over to the Appellant.

4.  The only witness who gave oral testimony for the prosecution was indeed Miss Au who confirmed that she and the Appellant were friends and they had previously had a sexual relationship when she worked as a hostess in a nightclub.  She testified to the fact that on 8 June 2007, about a year after she had last seen the Appellant, the Appellant telephoned her and asked her out for a drink.  She was surprised to hear from him.  They eventually had a meal in the course of which, the Appellant told PW1 that he had lost his wallet coming back from China and he asked her help to purchase goods for his clients with her credit card, saying that he would pay her back two days later.  PW1 was evidently hesitant at first to agree to this, but was eventually persuaded and purchases were made to the sum of $154,556 and the goods handed over to the Appellant.  (Charge 1)

5.  The following day, 9 June 2007, further purchases were made by PW1 on behalf of the Appellant with her credit card amounting to $20,772 and again the goods were handed to the Appellant who promised PW1 that he would repay the money in one go on 11 June 2007.  This never happened.

6.  The Appellant testified to the fact that he and PW1 were lovers and he had known her since June 2006.  From the time that he met her until early 2007, he said that he had lent PW1 a total of $150,000 in order to help her pay her debts which she had not repaid.  The agreement by PW1 to purchase goods for the Appellant with her credit cards was done in the form of repaying the loan to him, but when she, PW1 found out that the Appellant was married, as an act of revenge, she made a false report of theft to the police.

7.  Two grounds of appeal were put forward on behalf of the Appellant:

(a)  that the learned Magistrate had placed too much weight on PW1’s evidence without considering fairly a number of discrepancies and inherent unlikelihoods in her testimony.

(b)  the learned Magistrate unfairly dismissed the Appellant’s evidence ruling that it was not worthy of any credit.

8.  With the greatest of respect, I find there to be no merit in either of these grounds.  In her detailed and reasoned statement of findings, the learned Magistrate fairly assessed both the evidence of the victim, PW1 on the one hand and the Appellant on the other.  There were no material discrepancies in the evidence of the victim such as to enable the Magistrate to find her evidence less cogent.  Indeed the Magistrate was satisfied that PW1 “was an honest and credible witness who gave her evidence in a straightforward manner, simply yet cogently”.  Conversely, the Magistrate was clearly of the view that the Appellant was not telling the truth in the witness box.  She found him to be evasive when answering questions and was satisfied that his evidence was not worthy of any credit.  The Magistrate was perfectly entitled to come to these findings, she it was who had the benefit of seeing and hearing the respective witnesses give evidence.

9.  I repeat, there is no merit in either of the grounds of appeal put forward on behalf of the Appellant.  The appeal, against conviction is dismissed and I confirm the convictions on both charges.